The Malawi Gazette Supplement dated 29th June, 2018 containing Acts         

  (No. 4C)

MALAWI GOVERNMENT

(Published 29th June, 2018) Act

No. 15 of 2018

I assent

Prof. Arthur Peter Mutharika

President

16th June, 2018  

ARRANGEMENT OF SECTIONS

SECTIONS

1. Short title and commencement
2. Interpretation
3. Application
4. Regulation of exports and imports
5. Application for institution and review of measures
6. Consultations
7. Representations
8. Requests for review of measures
9. Review and variation of orders
10. Fumishing of information
11. Inspections
12. Obligations of inspectors
13. Review by the High Court
14. Offences and penalties
15. Regulations
16. Repeals and savings

An Act to regulate the import into and export out of Malawi, of
certain classes of goods and for other matters connected
therewith and incidental thereto

ENACTED by the Parliament of Malawi as follows—

 1. This Act may be cited as the Control of Goods Act, 2018, and shall come into operation on a date  the Minister shall appoint, by notice published in the Gazette.

2. In this Act, unless the context otherwise requires—

                       “export” means goods taken out of or sent from Malawi;

          “goods” means all kinds of movable personal property, including—-

                            a. anything capable of being imported or exported;

                             b.any kind of manufactured or unmanufactured commodity; and

                             c. any kind of animal or plant life;

“goods in transit” means goods imported into Malawi for the sole purpose of being exported after transportation through Malawi;

“import” means goods that are brought into Malawi;

“interested party”, in relation to goods, includes'—

                              a) a producer, exporter or importer;

                              b) any person or entity who has a beneficial interest;

                                c) a trade or business association of which a majority of its members are either                             producers, exporters or importers;

d) a trade or business association of which a majority of its members will be affected by any decision taken under this Act;

                                e) unions or other similar organizations representing the interests of farmers and other persons that may be affected by a measure;

f) consumer associations; or

g) any other person that the Minister considers appropriate;

“regulated goods” means any goods or class of goods, the import into or the export from Malawi of which is prohibited, restricted or otherwise regulated by an Order made pursuant to section 4 of this Act; and

“trade remedy measures” includes anti-dumping duties, countervailing duties and safeguard measures.

3. This Act shall apply to imports and exports of goods in Malawi, including goods in transit or transhipment through Malawi.

                    4. —(1) The Minister shall, by notice published in the make orders to regulate the import or export of goods in Malawi, by prescribing that—

                       a. goods of a specified class may not be imported into or exported from Malawi;

                      b. goods of a specified class may not be imported into or exported from Malawi for a specified duration; and

                    c. goods of a specified class may not be imported into or exported from Malawi, except under the authority of a licence.

              2. In making an order under subsection (1), the Minister shall take into consideration—

           a) the provisions of section 6;

          b) necessity or expedience in the public interest; or

         c) an application by an interested party.

          3. For purposes of subsection (2grounds of public interest include—

             a) prevention of or relief to critical shortages of foodstuffs, food or other products essential to the country;

            b) the protection of domestic industry from serious injury imposed by import surges;

           c) ensuring the supply of essential raw materials;

           d) the protection of consumers;

e) combating the spread of contagious human, animal or plant diseases;

           f)protecting public health or safety;

         g) the protection of the environment;

h) combating the illicit trade in narcotics, arms and ammunition, endangered species or any other prohibited goods;

i) maintaining balance of payments;

j) support of infant industries;

k) security of export proceeds; or

(/) the prevention of criminal activity.

     (4) The Minister shall verify with relevant authorities that the thresholds that require intervention on grounds of public interest listed in subsection (3) have been reached and require measures to be taken under this Act.

     (5) The order made under this section shall be for a specified period not exceeding two consecutive years in order to address the problem identified.

5. —(1) An interested party may, in the prescribed manner and form, on submission of evidence—

      a) at any time, make an application to the Minister to consider instituting measures under section 4(1); or

     b) after publication of a measure in the petition the Minister for variation, continuation, or revocation of an order made under section 4(1).

       (2) An application made under subsection (1) shall contain sufficient information to allow the Minister to evaluate whether the grounds upon which the application has been made are in the public interest.

      (3) The Minister shall respond to an application made pursuant to this section, within fourteen days.

6.—(1) The Minister shall consult relevant interested parties before a final determination is made to make an order to regulate specified goods under section 4(1) or section 5(1).

      (2) The Minister shall publish a notice of the consultations in at least two newspapers of general nationwide circulation and the website of the Ministry.

     (3) The notice referred to in subsection (2) shall—

        a) include sufficient details of the classes of goods that the intended order will cover, the nature of the measures, and the reasons for the intended measures; and

       b) state the period, which shall not, in any case, be less than thirty days, within which interested parties may make representations on the proposed measure.

   (4) The Minister may, in circumstances where a delay would cause irreparable damage, impose provisional measures pursuant to -section-4(l) which shall be in force for not more than sixty days, before a final determination of the appropriate measure is made.

        7. —(1) Interested parties may, where a notice is issued pursuant to section 6 (2), within the prescribed period, make representations to the Minister concerning intended measures.

               (2) The Minister shall take into consideration the representations made pursuant to subsection (1) and make a determination to implement or not to implement the measure.

              (3) Within twenty-one days of making his determination, the Minister shall publish his determination and giving reasons therefor, by notice published in the Gazette.

      8. —(1) An interested party may, with reasons and in writing, request the Minister to consider reviewing the decision made under this Act.

              (2). The application for review may be made where—

                  a) the situation or conditions giving rise to the order have changed; or

                  b) material information emerges that information provided by a person who made an application, or made other representations under this Act was incorrect or in contravention of this Act.

             (3) A request for a review under subsection (1) may take place at any time that the applicant becomes aware of these facts.

      9. —(1) An order made under this Act shall be reviewed by the Minister—

         a)automatically after—

            i. six months in the case of agricultural products; and

            ii. twelve months for all other products; and

        b) on application by an interested party.

      (2) If, on consultation with an interested party there is evidence that the situation or conditions that called for the measures taken under that order have materially changed, the Minister may amend or revoke an existing order.

      3) The Minister may, at any time, consider amending or revoking any licence issued pursuant to an existing order, if it comes to light that—

         a) an applicant supplied incorrect or incomplete information in support of the application; or

        b) an applicant utilized misleading information or deceit in seeking the order to be made.

      10. —(1) The Minister, or any person authorized by him may, in writing, direct any person who imports, exports, manufactures, supplies, trades, handles, stores, transports, or otheiwise has control over goods to which this Act applies, his agent or servant, to—

{a) furnish the Minister, or his authorized representative, with any information at his disposal relating to the importation, export, manufacture, supply or storage of the goods concerned;

        b) furnish the Minister, or his authorized representative, with any information at his disposal relating to any goods which he has or has had in his possession or custody, or over which he has or has had any control; or

       c) produce to any person, as may be so specified, any books, accounts, or other documents relating to that particular trade, business, undertaking, or enterprise.

11.__(1) The Minister may appoint inspectors to conduct inspections to ascertain whether this Act or any orders made or licences issued under this Act are being complied with.

        (2) Inspectors appointed pursuant to subsection (1) may, at any time, enter into and inspect any premises, storage or vehicle in which any goods to which section 4(1) applies are stored, manufactured, supplied, handled, sold, transported or otherwise dealt with.

      (3) An inspector conducting an inspection under this Act, may direct any person who imports, exports, manufactures, supplies, trades, handles, stores, transports, or otherwise has control over goods to which this Act applies, or his agent or servant, to—

     a) produce to the inspector any such goods or document in connection with the goods in his custody or under his control; and

     b) furnish the inspector with any other information or explanation, either in writing or verbally, as the inspector may require.

    (4) An inspector may examine any relevant documents relating to regulated goods, and may request from any of the persons referred to in subsection (3) an explanation of any entries therein.

   (5) An inspector may, for the purposes of examination or for production as evidence, and in accordance with applicable law, seize and remove any goods, books, records, or documents that may be used as evidence of commission of an offence under this Act, which are in the possession of any person referred to in subsection

3(a).

     (6) If the owner or person in control of an article or document—

          a) refuses to surrender an article or document to an inspector or person conducting the search; and

b) if this materially affects the performance of duties the inspector or authorized person necessary to give effect to this Act, the inspector shall take custody of the article or document, seal it, and have it attached pending a determination by a court regarding whether or not the information it contains is confidential.